More Thoughts on the Title IX Question in Pay-for-Play

Yesterday I posted about why Title IX’s equal treatment mandate would require schools to provide female athletes with the same benefits they award to male players via collective bargaining. To make my point, I used the example of extended health insurance, because that is the benefit that the football players have stated is the purpose of their efforts to unionize.

I think that the same analysis would apply even if the bargained-for benefit is salaried compensation.

And contrary to what other commentators have stated, I do not think that the revenue-producing nature of the sport is the basis for a distinction.

Here’s why: Because when it comes to the treatment of student-athletes, the revenue-producing nature of the sport has already been rejected as the basis for unequal treatment among male and female athletes. A school could not decide to provide better locker rooms, or more quality coaching staff, or disproportionately high scholarship dollars, or any other benefit to football players on the grounds that football derives revenue and other sports don’t. That is well-settled, “black letter” Title IX law. So the revenue argument would not justify providing extended health insurance to players of one sex. Nor should it justify providing salaried compensation to players of one sex.

Many have pointed out that there is case law holding that it is not a a violation of the Equal Pay Act to use revenue as the basis on which to pay one coach more than another for otherwise similar work. In particular, folks have pointed to Stanley v. USC, 178 F.3d 1069 (9th Cir. June 2, 1999). In that case, the court rejected a female coach’s Equal Pay Act claim after finding that the male coach’s capacity for revenue made the jobs dissimilar, such that the plaintiff failed in her burden of showing that she was paid less for substantially similar job.

Say what you will about Stanley (many think the court got it wrong, since the capacity for revenue is not in the coach’s control, but a function of society’s preferences for men’s sports). But regardless, I don’t think Stanley settles the question as it relates to student compensation. I have two reasons:

First, the proper reading of Stanley is a narrow one. The EEOC has, since that case, issued guidance that suggests revenue-generation can only be used as a defense to salary differential between male and female coaches when “the woman is not given the equivalent support to enable her to raise revenue.” I would argue that there are few women’s teams that receive equivalent support to men’s football.

Second, and by far the more important reason, is that Title IX, through its implementing regulations, contains a clear equal treatment mandate that applies to students, and not to coaches. Importantly, that equal treatment mandate is the basis for my argument, above, that Title IX requires schools to match whatever benefit it extends to male students to female students as well. Because no similar mandate applies to coaches, it is simply not relevant that courts have concluded that coaches can be paid dissimilarly on the grounds of revenue.

I therefore think that schools cannot pay athletes of one sex and refuse to pay athletes of another sex — even if the distinction they are making is the athlete’s capacity for revenue.